Stewart Lee Karlin Law Group, P.C., New York, NY (Daniel E.
Dugan of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York, NY (Fay Ng
and Eric Lee of counsel), for respondents.
RANDALL T. ENG, P.J., SHERI S. ROMAN, ROBERT J. MILLER, LINDA
DECISION & ORDER
action to recover damages for discrimination in employment on
the basis of age in violation of the Age Discrimination in
Employment Act of 1967 (29 USC § 621, et seq.),
the plaintiff appeals from an order of the Supreme Court,
Kings County (Genovesi, J.), dated April 16, 2015, which
granted the defendants' motion to dismiss the amended
complaint pursuant to CPLR 3211(a).
that the order is affirmed, with costs.
plaintiff was a teacher at a junior high school in Brooklyn.
She commenced this action to recover damages for
discrimination in employment on the basis of age in violation
of the Age Discrimination in Employment Act of 1967 (29 USC
§ 621, et seq.).
amended complaint alleged that the plaintiff had been
subjected to repeated instances of discrimination by the
principal and the assistant principal. The amended complaint
alleged that these instances of discrimination created a
hostile work environment and ultimately led to the
constructive discharge of the plaintiff.
defendants moved to dismiss the amended complaint pursuant to
CPLR 3211(a). The Supreme Court granted the defendants'
motion, and the plaintiff appeals. We affirm.
a motion pursuant to CPLR 3211(a)(7) to dismiss for failure
to state a cause of action, the court must afford the
pleading a liberal construction, accept all facts as alleged
in the pleading to be true, accord the plaintiff the benefit
of every possible favorable inference, and determine only
whether the facts as alleged fit within any cognizable legal
theory" (Phillips v Taco Bell Corp., 152 A.D.3d
806, 807; see Leon v Martinez, 84 N.Y.2d 83, 87).
Discrimination in Employment Act of 1967 (hereinafter the
ADEA) provides, in relevant part: "It shall be unlawful
for an employer... to discharge any individual or otherwise
discriminate against any individual with respect to [her]
compensation, terms, conditions, or privileges of employment,
because of such individual's age" (29 USC §
623[a]; see Lichtman v Martin's News Shops Mgt.,
Inc., 81 A.D.3d 696, 697). "To establish a prima
facie case of age discrimination under the ADEA, a claimant
must demonstrate that: 1) [she] was within the protected age
group; 2) [she] was qualified for the position; 3) [she] was
subject to an adverse employment action; and 4) the adverse
action occurred under circumstances giving rise to an
inference of discrimination'" (Terry v
Ashcroft, 336 F.3d 128, 137-138 [2d Cir], quoting
Roge v NYP Holdings, Inc., 257 F.3d 164, 168 [2d
the amended complaint alleged that the plaintiff was subject
to two types of adverse employment actions: (1) she was
constructively discharged due to a hostile work environment,
and (2) she was given "unsatisfactory" ratings with
respect to certain annual performance evaluations. In the
order appealed from, the Supreme Court concluded that the
amended complaint failed to adequately allege that the
plaintiff was subject to an adverse employment action.
we reject the plaintiff's contention that the alleged
"unsatisfactory" annual performance evaluations
satisfied the requirement that the plaintiff was subject to
an adverse employment action. Contrary to the plaintiff's
contention, these negative evaluations may not serve as
independent adverse employment actions because those discrete
acts occurred more than 300 days before the plaintiff filed a
complaint with the Equal Employment Opportunity Commission
(see National Railroad Passenger Corporation v
Morgan, 536 U.S. 101, 110). Although we have considered
these annual performance evaluations in connection with the
plaintiff's contention that she was constructively
discharged due to a hostile work environment (see
id. at 115-117), under the circumstances here they may
not independently satisfy the requirement that she "was
subject to an adverse employment action" (Terry v
Ashcroft, 336 F.3d at 138; see National Railroad
Passenger Corporation v Morgan, 536 U.S. at 113).
order to establish a cause of action alleging hostile work
environment under the ADEA, a plaintiff must show that
"the harassment was sufficiently severe or pervasive to
alter the conditions of the victim's employment and
create an abusive working environment" (Terry v
Ashcroft, 336 F.3d at 147-148 [internal quotation marks
omitted]; see Perry v Ethan Allen, Inc., 115 F.3d
143, 149 [2d Cir]). The United States Supreme Court has
"made it clear that conduct must be extreme to amount to
a change in the terms and conditions of employment"
(Faragher v Boca Raton, 524 U.S. 775, 788).
"This test has objective and subjective elements: the
misconduct shown must be severe or pervasive enough to create
an objectively hostile or abusive work environment, ' and
the victim must also subjectively perceive that environment
to be abusive" (Alfano v Costello, 294 F.3d
365, 374 [2d Cir], quoting Harris v Forklift Systems,
Inc., 510 U.S. 17, 21).
general rule, incidents must be more than "episodic;
they must be sufficiently continuous and concerted in order
to be deemed pervasive" (Perry v Ethan Allen,
Inc., 115 F.3d at 149 [internal quotation marks
omitted]; see Alfano v Costello, 294 F.3d at 374).
"Isolated acts, unless very serious, do not meet the
threshold of severity or pervasiveness" (Alfano v
Costello, 294 ...